SZRSA v Minister for Immigration & Anor - [2012] FMCA 1187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSA v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1187

MIGRATION – RRT decision – Chinese applicant claiming fears of persecution on political and religious grounds – adverse credibility findings referred to country information – no breach of procedures under s.424A in relation to authorship of articles containing the country information – direction in s.91R(3) has no application to complementary protection criterion – However, the Tribunal did not disregard the applicant’s conduct in Australia when addressing that criterion – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.36, 36(2)(aa), 91R(3), 91R(3)(a), 424AA, 424A, 424A(1), 424A(2), 424A(2A), 424A(3), 424A(3)(a)

Minister for Immigration & Citizenship v SZHXF (2008) 166 FCR 298, [2008] FCAFC 36
Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO (2009) 238 CLR 642, [2009] HCA 40
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507, (2009) 258 ALR 448
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572, [2004] FCAFC 264
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

Applicant:

SZRSA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1685 of 2012

Judgment of:

Smith FM

Hearing date:

7 December 2012

Delivered at:

Sydney

Delivered on:

7 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr M Jones

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr M Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1685 of 2012

SZRSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in March 2011 on a three month visitor’s visa, which appears to have been granted to allow him to visit his sister in Australia. He had previously visited Australia in November 2008 for two months. On 17 June 2011, just before his visa expired, he filed an application for a protection visa assisted by a person who was not a migration agent. Attached to the application was a statement setting out why the applicant claimed to fear persecution if he returned to his country of nationality, The People’s Republic of China.

The applicant’s refugee claims

The applicant said that he was afraid “that I will be arrested by the police in China as soon as I go back to China”. His statement referred to his being a Christian in China, but did not identify his religion as a reason for fearing persecution. Rather, he said: “after Jasmine Revolution happened, I was totally disappointed at the Chinese government”. He made criticisms of the Chinese political, social, and economic situation, and said:
I firmly believe that all these derive from the autocracy in China. The dictator has blocked the way to improve our life. We can only strive for our life under the heavy burden of high house price and high inflation, which means hopelessness to us. During my forty‑one years of life, I never enjoy the rights of election, no mention of human rights. I was stimulated by the fragrance of Jasmine [Revolution] and came to understand how wicked the current system is. Then I have a strong will to take action in order to change the situation in China. On Sunday 27 Feb 2011, after I attended my church named [the church] located in the junction of [location], I went to show my support for the protestors. I had my lunch after praying in the church in the morning and then went to join the groups of protestors between People’s Square and [a road]. I peacefully protested with some people who share the same opinions with me. When we walked to the front of [a landmark] located in the junction of [location], suddenly large groups of police in uniforms or plain clothes appeared to arrest the protestors. The situation was nearly out of control. I saw some police starting to take photos of the protestors some of which were arguing with them. I began to scare when I saw some police using violence against the protestors. All at once, I felt that my hands are grabbed by someone and I fought desperately to get rid of the chaos as my instinct. I kept running until I escaped from the police. I was terribly scared as I saw some people being taken away into a police car. Cleaning trucks were used to drive people way. Amplifiers on the top of truck called people to leave were even used to dispel the gathering groups. I ran upstairs of [the church] and found a seat to pray with some other believers in the afternoon session. I was praying to God to protect me from arresting until the session ended. I was still worried to be caught by the police when I left the Church with other people. On my way out I still saw large number of people remaining on the street so I chose to leave from [another road] because I know that way quite well. All of a sudden a man came and asked me why I was here. I thought that he was a police in plain clothes so I told him that I just finished my attendance in the church and was ready to go home. Then he warned me not to stay here and leave asap. I immediately ran from that place but was still worried that if I was followed and would be arrested. As I got home, I was still afraid of being caught the police. Even when I was sleeping, I often had a nightmare which woke me up that police appeared at my place and arrested me. I was weeping by myself and praying for those who were caught by the police, hoping that they can be freed safely. After several days, an unknown call was made to my home for my information, and I knew the police had noticed me and the call was for me. Since then I was living in my relatives place and never dared to return to my home until I arrived in Sydney in the evening of 26 March. What’s worse is that the mass media in China has censored all the news relating to the Jasmine Revolution. Those who were taken to [named] police station have no information until now.
His visa statement referred to the numbers of people arrested in the events of 27 February 2011, and claimed that he did not “dare to return to my home in China with the concern that the police is looking for me. ... Their suppression of Jasmine Revolution is defined the same as Falun Gong”. In support of his claim, he presented photographs showing the church he attended and himself in the choir at that church, as well as identity documents.
The applicant was interviewed by an officer of the Department of Immigration on 12 August 2011, and the delegate made a decision on 18 August 2011 to refuse the visa application. The delegate perceived the applicant raising a claim during the hearing that he might suffer religious persecution on the basis of his Christianity. The delegate noted the applicant’s evidence that he had been baptised at, and usually attended, an officially sanctioned church, and said:
I note the applicant’s claims that apart from his membership of the official Christian church of China he had only ever been the member of one other congregation in approximately 1997 or 1998. He claims that he attended a home church for about 5 months which was run by a Chinese/American couple [that were named]. He claims that he stopped attending that church when it was banned by the Chinese Government and they were forced to return to the United States. It would appear otherwise that the applicant has been a congregation member of the official Christian church of China for approximately the previous 15 years.
The delegate also referred to the applicant’s claim to have a desire to evangelise arising from his attendances at the Ashfield Chinese Presbyterian Church in Australia, but the delegate formed the opinion his interest in evangelism arose for the sole purpose of strengthening his claim for a protection visa. The delegate did not accept parts of the applicant’s claims about his involvement in a demonstration as part of the Jasmine Revolution, and considered the circumstances of his departure from China. The delegate was not satisfied that the applicant had a well‑founded fear of persecution on a Convention ground of religion.
Because the delegate’s decision was made before the complementary protection amendments to s.36 of the Migration Act 1958 (Cth), the delegate was not obliged to consider Australia’s international obligations under other Conventions.
The applicant appealed to the Tribunal, and appointed a solicitor to represent him. The solicitor forwarded to the Tribunal shortly before a hearing appointed by the Tribunal, a number of documents and a further statement by the applicant. In his statement, the applicant gave a new account of his attendance at the underground church in 1997. He said:
On a night when we were gathering at the house, suddenly we heard someone was knocking the door. With the door opened, there were police there. They burst into the house and accusing us of having unlawful gathering. Then all of us were taken to the PSB for questioning. We were separated and taken into several different rooms. We were ordered to squat down to think over our wrongdoing. At the same time, one of the policemen asked me why I chose to join the underground church instead of the Three‑Self Church. I was too scare and nervous at the time to answer questions of policeman. The policeman came over and kicked me brutally. I felt quite painful after being kicked but I just endured it. I thought the police should protect people. Given we didn’t break any law, I couldn’t understand why the police could beat our Christians like this. We were threatened and forced to make statement of undertaking by promising to stop attending the underground church and to stop joining activities of spreading superstition. We were warned that if we didn’t do as told, we would face consequence, I was so frightened at the time so I had no choice but to make such statement. The worse thing was that I did not realize that this is a type of persecution. In the past, I had misunderstanding the meaning of persecution. I thought that only brutal torture, interrogation, physical harm imprisonment amount to the definition of persecution. For this reason when department officer asked me during the interview if I had ever suffered any persecution, I gave the reply of no. Now I realized what I had suffered also is kind of persecution.
The applicant also claimed that he had new information from a friend in China:
After my arrival in Sydney, I had contacted one of my friends on the phone, who had joined the Jasmine Revolution with me. He told me that I must not return to Shanghai, otherwise, I would certainly have trouble. I asked him if he had any trouble. He told me that the Public Security Bureau (PSB) had already located him and questioned him why he joined the Jasmine Revolution by taking part in street strolling and who introduced him to this activity. Under pressure, my friend had no choice but disclosed my name to the PSB. He also had made a statement of remorse. I was so frightened at this news. Furthermore, during my recent phone contact with my wife, my wife wanted to tell me something very urgent. According to my wife, the PSB had come to our home and asked my wife when I would return to China. If I come back, I must attend to the PSB for questioning. My wife also told me that she had also written a letter to me. When I learned this from my wife on the phone, I was seized by the sense of great fear. In addition to that, some time ago, I had called a person who is a friend of my previous boss, who is now working for the PSB of [a district]. According to him, China’s Ministry of Public Security treated the Jasmine Revolution as same as treat the Falun Gong. Any one who is caught either joining or organizing this movement would be charged and punished for the crime of subverting the state power. For me, I not only joined this activity, but also organized my friends to join this activity. According to the PSB’s guideline, I had committed very serious offence.
The applicant also elaborated upon his attendances in Australia at classes to learn “how to spreading gospel”. This part of his statement said:
Since I arrived in Sydney on 27 March, I have been always attending the worship service at Ashfield Presbyterian Church. Each Sunday morning at 8:00, I went to church where I helped the preparation of lunch with other brothers and sisters. I am learning how to serve God and other sisters and brothers. God cares about our sincerity instead of our ability. If we are sincere in our belief, God is happy to accept us. At exactly 10:00am, I would join church worship service. After worship, I would join the church Bible study group. I also attended the Baptism class to learn how to spreading gospel. The class is mainly for believers who wish to be baptised. Apart from this, I also joined other church activities including handing out our church leaflets in the street. In addition, I joined the church youth Bible study group every Saturday night. Since I arrived in Sydney, I read God’s words every night so to fulfill my holy spirit. I do feel my spiritual life is growing. I should continue my spiritual pursuit so God would open my mind to let me understand His words and to make me capable to help other souls to be awakened up, redeemed and saved. I have found peace and joy in Australia. I understand they are all given by God. After I have experienced the ban of underground church and participation of Jasmine Revolution, I was full filled with despair at Chinese government. I believe that only God can change China. I am willing to read the words of God and to use my whole life to serve God and help my fellow Chinese and make them to have real understanding Jesus Christ. However, once I am thinking of returning to China and the possibility of being arrested. I would be seized by fear and panic again. Now all I can do is to rely on God and pray to God so to ask God for His blessing. Dear Honorable RRT members, now only the Australian government can protect me from harm. I sincere wish you could help me out.
The applicant presented some translated witness statements in support of his claims, including a letter from his sister suggesting that she recalled being interrogated by the PSB in 1997 after the banning of the underground church. There was also a letter from the friend, who the applicant claimed had participated with him in the demonstration of 27 February 2011, and who said he had later been forced to inform against the applicant. Two letters from a preacher and elder at the Ashfield church were also submitted, to corroborate that the applicant had been attending their church and participating in their activities. They said that they believed his faith was genuine and that he “is motivated to preaching gospel to people”.
The applicant’s claims were then investigated by the Tribunal at a hearing held on 20 January 2012, and at a second hearing held on 8 May 2012. The Tribunal’s invitation to the second hearing referred to the introduction of the complementary protection amendments after the date of the first hearing, and invited additional information as to whether the applicant met the alternative complementary protection criterion.
A transcript of both hearings was tendered before me, and I was taken to a passage in the second hearing by the applicant’s counsel today in support of Ground 2. However I do not think that it provided any support for the arguments in support of Ground 2, and I shall not therefore set out that part of the transcript. That ground turns upon an examination of the Tribunal’s reasoning shown in its statement of reasons, and in my opinion this is not assisted at all by reference to what was said at the hearing in the passage to which I was taken.
As appears from the Tribunal’s description of the second hearing, the Tribunal took the opportunity generally to discuss with the applicant all his claims to fear harm in China, whether they were covered by the Refugees Convention or complementary protection obligations. The Tribunal put to the applicant factual matters which might appear inconsistent with his evidence bearing on all the criteria for a protection visa, and clearly suggested to him that he had embarked on embellishment and fabrication in relation to the history he was now presenting.

The Tribunal’s decision

The Tribunal made a decision on 29 June 2012, which affirmed the delegate’s decision. It appears to me that the decision is a thorough and well‑reasoned document. It contains impeccable reference to the general legal provisions required to be applied by the Tribunal, including reference to the complementary protection criteria introduced in s.36(2)(aa) and supportive definitional provisions. It also accurately set out the applicant’s claims, and the manner in which they had developed over time at interviews, in documents and at hearings. The Tribunal identified the corroborative documents, and the witness testimony given by one of the witnesses from the Ashfield church. In this respect, a witness had told the Tribunal that “the applicant actively joined the church’s classes, prepared lunch every Sunday for the church parishioners, and actively joined the church’s Bible study groups”.
After recounting what had happened at the hearings, the Tribunal referred to “independent evidence” concerning the human rights situation in China generally and in relation to restrictions on religious practice. The Tribunal also said:
‘Jasmine Revolution’ in China
84.The Jasmine Revolution, in so far as it relates to China, refers to events that occurred in response to a series of calls made via a Chinese language website, boxun.com, for people to gather at specific sites in major cities in China including Beijing and Shanghai and stroll together as a form of protest. Boxun.com is reportedly part of a network of organisations inside and outside China pressing for social change. The website postings called for people to shout slogans and call for freedom, democracy and political reform to end one party rule. The first events occurred on the 20 February 2011 and the second occurred on 27 February 2011. Reports of the events indicate the number of protesters was small and that it was difficult to discern how many people were participants and how many were observers or curious onlookers. The authorities responded quickly and with overwhelming force, arresting and detaining dissidents and online activists before the first event and having a massive security presence at the sites at the scheduled time of the protests. Whilst the first gathering was the biggest, they quickly petered out after. There were a few arrests of participants at the first events but dozens of citizens were arrested and detained at the second events. In the wake of the protest calls numerous government critics and dissidents, lawyers, activists, bloggers and “netizens” were arrested with some charged with crimes “creating a disturbance” or “inciting subversion” while others have “disappeared through extra‑judicial procedures”. (Wang, A. & Savitt, S., ‘In China, Strolling for Reform’, The New York Times, 4 March 2011, opinion/05iht-edsavitt05.html?_r=1; Martina, M. & Chan, R., ‘China protest call smothered in police blanket’, Reuters, 27 February 2011, Amnesty International, ‘China’s ‘Jasmine’ Activists’, AI website, 5 May 2011, E2%80%99s-jasmine-activists-2011-05-05; Mu, C., ‘Why Jasmine Died in China’, The Diplomat, 14 July 2011, Steinfeld, E.S., ‘China’s Other Revolution’, Boston Review, July/August 2011,

The Tribunal then set out its “Findings and Reasons”. At the start of these, it concisely summarised the applicant’s claims and the extent to which it accepted his evidence:
86.In summary, the applicant claims he is a Christian who has almost exclusively attended government sanctioned churches in China and that he feared being arrested if he attended a church which is not sanctioned by the government. Further, he claims he would be arrested for being anti‑government if he returns to China due to his involvement in the Jasmine Revolution event in Shanghai on 27 February 2011, specifically because he invited others to attend the event and a friend, Mr X, has informed the police that he invited the friend to attend the event.
87.At the Tribunal hearing the applicant demonstrated a sound familiarity with the fundamental beliefs of Christianity and he has produced photographs of himself in what appears to be choir attire. The Tribunal thus accepts that the applicant became a Christian in China in 1997 and that he subsequently attended government sanctioned churches in China as he claims. The applicant claims that he attended the Ashfield Presbyterian Church during his first visit to Australia and has attended that church since he returned to Australia in March 2011. The information he has provided about his church attendance, his activities with the church, and his religious practice in Australia is consistent with the letters from a preacher and elder of the Ashfield Presbyterian Church as well as the oral testimony of the preacher whom the Tribunal found to be credible. Thus, the Tribunal accepts that the applicant has attended the Ashfield Presbyterian Church and participated in the church’s activities as he claims, and that he continues to regard himself as a Christian.
88.However, for the following reasons the Tribunal did not find the applicant an otherwise credible witness.
The Tribunal then, in a careful analysis which was not the subject of attack in the proceedings before me, explained why it had not found credible the applicant’s explanations for his shifting presentation of his refugee claims. It referred, in particular, to how the claim about the applicant’s attendance at an underground church and persecution in the course of this had been presented to the delegate at interview, and been developed in his evidence to the Tribunal. The Tribunal concluded: “it appears that the applicant invented the claim that he attended an underground church and then embellished the claim over time”.
The Tribunal analysed the applicant’s claim that after his visit to Australia in 2008 he had doubted the religious benefits of his attendances at the official church. The Tribunal noted that the applicant’s attendances had not waned after 2008, and it concluded: “the fact that the applicant attended government sanctioned churches every Sunday for over a decade indicates that he wanted to and freely chose to attend those churches”. The Tribunal said it could not find credible the applicant’s explanations as to why recently he had engaged in bible studies on the internet.
The Tribunal noted that the applicant had claimed at the hearing that “the main reason he participated in the Jasmine Revolution event was the lack of religious freedom in China”. However, the Tribunal noted that no mention of such a claim had been made in his original visa application statement. The Tribunal said: “the Tribunal does not find it credible that he would have failed to specify in his protection visa application that the lack of religious freedom in China was his primary motivation for participating in the Jasmine Revolution. This undermines his credibility generally and his claim that he participated in the Jasmine Revolution”.
The Tribunal noted aspects of the applicant’s presentation as a witness, where it found him to be “evasive” and “intentionally trying to avoid answering the Tribunal’s questions”.
The Tribunal considered the applicant’s account of his involvement in the Jasmine Revolution, and his claims that he had been identified as a participant by the police at that time and also subsequently on information from a friend. The Tribunal concluded that it “does not find the applicant’s evidence that he was identified by the police within a few days of the event credible”, and gave reasons for this which appear rational.
The Tribunal also considered the applicant’s more recent claims that he had information from his friend, that the police were looking for him as a result of information extracted from the friend. The Tribunal said in relation to this:
98.The applicant claims that six months after his involvement in the Jasmine Revolution event the police located one of the friends he had invited to attend the event, [name], and his friend revealed that the applicant had invited him to the event. The Tribunal does not find it credible that the authorities continued to try to locate the applicant six months after the Jasmine Revolution event. The information in the sources consulted by the Tribunal indicate that the authorities quickly and forcefully acted in response to the Boxun posts and arrested dissidents and activists just before and shortly after the Jasmine Revolution events. The information does not indicate that for months afterwards the authorities pursued persons such as the applicant who were merely participants or invited a few friends to join the event. The applicant was not an activist, dissident, anti‑government blogger, and had never participated in any political activity before. He had not had any problems with the authorities since 1997. It seemed to the Tribunal that the applicant attempted to give himself a greater profile by claiming that he invited several friends to the event. When the Tribunal indicated its doubts about the credibility of his claim that the authorities would have been so interested in him months after the Jasmine Revolution event, the applicant responded that by attending an underground church in 1997 and the Jasmine Revolution event he would be viewed as being constantly anti‑government. The Tribunal does not accept this suggestion. The applicant complied with the police direction and did not attend an underground church after 1997. More significantly, he subsequently attended government sanctioned churches for 14 years. Further, if the applicant genuinely believed that the authorities viewed him in this way due to his involvement with the underground church then the Tribunal does not find it credible that he would not refer to his involvement with the underground church in his protection visa application.
The Tribunal then recorded its general findings and conclusions:
99.The above matters individually would not have led the Tribunal to make an adverse credibility finding. Cumulatively, however, they have led the Tribunal to conclude that the applicant is entirely lacking in credibility. Due to his lack of credibility the Tribunal does not accept that the applicant attended an underground church in China, that he was present when the police burst into a gathering of the church, that he was questioned and kicked, or that he was forced to make an undertaking not to attend an underground church again. The Tribunal believes that the applicant invented that claim to explain why he attended government sanctioned churches rather than underground churches in China. The Tribunal has had regard to the letter from Ms Y. However, due to the applicant’s lack of credibility the Tribunal gives her letter no weight. Further, the Tribunal does not accept that the applicant no longer wants to attend government sanctioned churches in China or that he feels compelled to evangelise. The Tribunal finds that the applicant attended the official churches in China because he freely chose to do so and not because he felt scared to attend an underground church. The Tribunal finds that the applicant invented the claim that he now wants to evangelise to bolster his claim for protection and he neither has a genuine desire nor would evangelise if he returned to China.
100.Further, due to the applicant’s lack of credibility the Tribunal does not accept that he participated in the Jasmine Revolution or that he invited friends to do so. The Tribunal thus does not accept that the police or Chinese authorities called the applicant after the event, have asked his wife about his whereabouts or told her that he needs to report for questioning upon his return to China. Nor does the Tribunal accept that the authorities located Mr X or that Mr X has disclosed to them that the applicant invited him to attend the Jasmine Revolution event. The Tribunal finds that the applicant invented those claims and that he is not nor has been of adverse interest to the police or authorities in China. The Tribunal has had regard to the letters from the applicant’s wife and Mr X. However, due to the applicant’s lack of credibility the Tribunal has given them no weight.
101.In relation to the applicant’s motivation in engaging in the church activities in Australia, the Tribunal accepts that the opinions expressed by Mr Z and Mr A in their letters regarding the applicant are their genuine views. Due to the applicant’s regular attendance at church services in China the Tribunal is satisfied that he has attended church worship services in Australia on Sundays to practise his religion. However, due to the applicant’s lack of credibility the Tribunal is not satisfied that he participated in the other church activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. Thus, the Tribunal has disregarded the activities the applicant engaged in with the Ashfield Presbyterian Church, other than his attendance at Sunday worship services, for the purposes of determining whether he has a well‑founded fear of persecution in China.
102.In light of the above findings, the Tribunal finds that the applicant can and would resume attending the government sanctioned churches if he returned to China of his own free will and not because he fears being harmed if he attended a non‑government sanctioned church. Further, the Tribunal finds that the applicant could continue to attend the government sanctioned churches and participate in their choirs as he has done in the past for over a decade without being harmed. In addition, having rejected his claims regarding the Jasmine Revolution, the Tribunal finds that the police would not arrest the applicant if he returns to China. Hence, there is not a real chance that the applicant will be persecuted in the reasonably foreseeable future if he returns to China. The Tribunal therefore finds that the applicant does not have a well‑founded fear of persecution in China for a Convention reason. He is not a refugee.
103.As the Tribunal has found that the applicant did not participate in the Jasmine Revolution event, did not attend an underground church in China but attended government sanctioned churches in China for over a decade without being harmed, will freely choose to attend government sanctioned churches if he returns, and neither wants to nor will evangelise in China, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to do this only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. Under the Australian Migration Act, the Court does not have the function of assessing the truth of the applicant’s evidence, nor of making its own assessment of the risks that he might face if he returned to China. It is not the function of the Court to decide whether the applicant qualifies for protection under any of the criteria set out in s.36, nor to decide whether he should be given permission to stay in Australia under such a visa or any other visa.
The applicant’s case has been presented on his behalf by his present solicitor, who relied on two grounds set out in the original application:
1.The Tribunal fell into jurisdictional error by failing to comply with the requirements of s 424A of the Migration Act 1958 (the Act).
Particulars
The Tribunal relied on information about events in China from certain named sources. In giving weight to that information it must be inferred that the Tribunal had information that about the identity and credentials of those sources which led it to believe they were reliable and credible. That information was not exempt from the operation of s 424A because it was information specifically about a person. The Tribunal failed to provide the Applicant with particulars of the information it had about those sources in a manner required by s 424A or 424AA of the Act.
2.The Tribunal did not have regard to all of the Applicant’s conduct in Australia in forming a view under s 36(2)(aa).
Particulars
The Tribunal applied s 91R(3) to disregard certain conduct of the Applicant in Australia. While s 91R(3) may have been applicable to the Tribunal’s consideration under s 36(2)(a), it has no application to s 36(2)(aa), and the Tribunal was not entitled to disregard that conduct in relation to the latter paragraph.

Ground 1

Section 424A, subsections (1) and (3) provide:
424A Information and invitation given in writing by Tribunal
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
…
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
Section 424AA and s.424A(2A) allow the Tribunal not to follow the written procedure set out in s.424A(1) and (2), if it follows an oral procedure at a hearing. It is unnecessary to examine the requirements of either of those procedures, since it is common ground before me today that at no stage did the Tribunal purport to follow either the written or oral statutory procedure, for the purpose of putting to the applicant any information about the identity and credentials of the authors of the articles about the ‘Jasmine Revolution’ which it cited in paragraph 84, as set out above.
However, in my opinion the contention that the Tribunal was bound to follow those procedures in relation to that information has no support in current authority. It might, although I doubt, have found some favour under previous Federal Court jurisprudence, but it has no support in the later analysis of the scope of s.424A(1) provided by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26.
The High Court explained the effect of SZBYR in Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507, (2009) 258 ALR 448 at [20] to [26]:
20This Court has construed s 424A in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs and in SZBYR v Minister for Immigration and Citizenship. There was no challenge to those authorities or the principles they contain, the emphasis in argument being on whether or not the file note in question was “the reason, or a part of the reason, for affirming the decision” under review and how that was to be assessed. Notably, it was contended by the first respondent that upon a proper review of the evidence the Federal Magistrate was correct in his conclusions.
21In SZBYR, it was stated that:
“Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.”
22Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT’s failure to mention the file note.
23This approach was, with respect, flawed given the following observations in SZBYR:
“[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of para (a) of s 424A(1) … However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
24As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.
25As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
26The RRT’s reasons show that what counted against the first respondent were internal inconsistencies in his evidence. The RRT disbelieved the first respondent’s evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s 424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the first respondent cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him.
(citations omitted)

In the present case, Ground 1 fails at numerous points under this analysis.
It fails at first base, in my opinion, because there is no evidence before me showing that the Tribunal gave any particular weight or attention to the names or personal credentials of the persons who are shown as the authors of the articles and news sources listed by the Tribunal at the end of paragraph 84. If it is possible to speculate as to the reasons for the Tribunal giving weight to the information taken from the cited material, one would conclude only that it was probably the identity of the news source, not the name shown on the by‑line, which gave credible weight to the information. If so, then the ‘information’ allowing the Tribunal to give credence to the information gleaned from the articles, would not be “specifically about the applicant or another person”. It would therefore come within the exclusion in s.424A(3)(a) as it has been interpreted by the authorities bearing on that paragraph, even if it was within the ambit of ‘information’ picked up by s.424A(1) as explained in SZBYR.
It has been established that the exclusion in s.424A(3)(a) covers sources of general information about the situation and events in a foreign country, where that information was not “specifically about the applicant or another person”. Such information has come to be referred to as ‘country information’, and it is well established that it is not subject to obligations under s.424A (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572, [2004] FCAFC 264, VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178, SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93, Minister for Immigration & Citizenship v SZHXF (2008) 166 FCR 298, [2008] FCAFC 36, and SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46).
The next difficulty facing Ground 1, is that it appears to me that the information which the Tribunal identified as being obtained from the sources set out in paragraph 84, including any information about the sources of that information, was not information which was at all controversial or inconsistent with the applicant’s claims, in so far as he had described the events on 27 February 2011 which he claimed to have participated in. It may be accepted that the Tribunal relied upon and cited that information in its discussion in paragraph 98, which I have extracted above, when assessing the applicant’s claims about what he had been told by his friend. However, the Tribunal’s conclusions in that paragraph, which were adverse to the applicant, resulted from its own thought processes which evaluated the applicant’s evidence about his involvement in the Jasmine Revolution event. The information cited at paragraph 84 did not itself ‘reject, deny or undermine’ the applicant’s evidence about that event. Rather, the information provided a non‑controversial reference by which the Tribunal tested the credibility of the applicant’s claims about his friend. The information was therefore not within s.424A(1).
Moreover, even if the ‘country information’ about what happened in the Jasmine Revolution event could be analysed as itself providing inconsistent evidence which was preferred by the Tribunal to that of the applicant, the name or other identity of the author of the articles containing that information did not provide ‘information’ coming within the ambit of s.424A(1).
In my opinion, analysing the Tribunal’s reasons for affirming the delegate’s decision in the manner required by SZBYR, its reasons fell directly within the category which the High Court found in that case, and also characterised in SZLFX. That is, the Tribunal’s reasons for affirming the delegate’s decision rested entirely on its disbelief of the applicant’s own evidence as to his claimed experiences and involvement in the Jasmine Revolution, and its disbelief was arrived at on an analysis of the applicant’s own evidence, based upon its internal inconsistencies and implausibilities, where these defects were explained partly by reference to apparently uncontroversial general information as to events in the Jasmine Revolution. In my opinion, s.424A “was not engaged at all” (cf. SZBYR at [21]).
For all of the above reasons, I am unpersuaded that the submissions in support of Ground 1 have established any jurisdictional error affecting this decision of the Tribunal.

Ground 2

Ground 2 turns upon an analysis of the Tribunal’s reasoning at the end of its decision in paragraphs 99 to 103, which I have extracted above.
It is premised upon a legal point, which was not disputed by the Minister before me, that the directive to decision‑makers addressing protection visa applications which is contained in s.91R(3) does not extend to the decision‑maker’s consideration of the new criterion under s.36(2)(aa). Whether this was an intended effect of the recent amendments, or a lacuna, is not something I need to explore.
Subsection 91R(3) provides:
91R Persecution
…
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
This provision is poorly expressed, and was the subject of some controversy, as to whether the provision required decision‑makers to exclude consideration of conduct in Australia falling within paragraph (b) for all purposes, or only when they would otherwise have decided that the conduct provided evidence that the claimant would satisfy the Convention definition. The controversy was settled in favour of the latter, more limited, effect by the High Court in Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO (2009) 238 CLR 642, [2009] HCA 40.
In that judgment French CJ and Bell J explained the purposes of the provision, which they then used to inform their construction of the directive in s.91R(3). They said:
9The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well‑founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. …
(citations omitted)
The same point was made by Crennan and Kiefel JJ at [64]:
64The approach of the Full Court was to regard sub‑s (3) as engaged once the inquiry in para (b) was answered. This does not give sufficient weight to the underlying objective of sub‑s (3). It is necessary to its proper operation that when a decision‑maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub‑s (3); if it would not strengthen the claim, it may be taken into account.
After the judgment of the High Court, it was clear that a decision‑maker considering the application of the criteria in s.36(2)(a) could, and indeed should, evaluate all of the applicant’s conduct in Australia, including the motives for which it was engaged in. If it was concluded that a motive within paragraph (b) existed for the conduct, then the Australian conduct could still be taken into account if it supported a negative assessment of the risks of persecution facing the applicant. In effect, as Crennan and Kiefel JJ said, a decision‑maker’s evaluation of the applicant’s conduct in Australia was not required to be disregarded “if it would not strengthen the claim”.
In the present case, it appears to me on a reasonable reading of the Tribunal’s decision, if not on the only possible reading of the Tribunal’s decision, that the Tribunal did make adverse findings as to the likelihood of the applicant facing persecution if he returned to China by reason of his having engaged in evangelical activities in Australia, based in part upon its adverse assessment of his conduct in Australia. In particular, its adverse assessment of his motivations for engaging in evangelical studies and other activities at the Ashfield church. It appears to me that reliance on this assessment of his Australian conduct must be implicit in the findings in paragraph 99, in particular in its findings that “the Tribunal does not accept that the applicant no longer wants to attend government sanctioned churches in China or that he feels compelled to evangelise”, and that “the applicant invented the claim that he now wants to evangelise to bolster his claim for protection and he neither has a genuine desire or would evangelise if he returned to China”. Those findings appear to be based on the Tribunal’s overall assessment of the applicant’s credibility, including in relation to his motives for his Australian conduct, and without disregarding any element in his evidence.
Since the Tribunal drew these negative inferences from the applicant’s Australian conduct in its assessment of his future risks of persecution in China, it may have been not strictly necessary for the Tribunal at paragraph 101 to suggest that it could disregard those activities “for the purposes of determining whether he has a well‑founded fear of persecution in China”. I therefore think the Tribunal must be understood in that paragraph as merely showing awareness of the requirements of s.91R(3), as explained in SZJGV.
However, even if this paragraph reflected a misapprehension in law as to the effects of s.91R(3)(a), it would not have been material to the Tribunal’s conclusions. Its adverse conclusion in paragraph 102 when addressing the criterion for a protection visa under s.36(2)(a) may be understood as supported both upon an application of s.91R(3) and also upon its earlier finding that the applicant would not evangelise if he returned to China. In any event, the applicant’s grounds of review do not at present challenge the Tribunal’s reasoning in relation to this criterion.
The issue raised by the present ground turns upon the Tribunal’s subsequent reasoning in paragraph 103, which addressed the new additional criterion in s.36(2)(aa). I shall repeat that paragraph:
103.As the Tribunal has found that the applicant did not participate in the Jasmine Revolution event, did not attend an underground church in China but attended government sanctioned churches in China for over a decade without being harmed, will freely choose to attend government sanctioned churches if he returns, and neither wants to nor will evangelise in China, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
The issue is whether the Tribunal’s conclusion in this paragraph, which plainly was intended to explain fully its application of s.36(2)(aa), was premised upon a disregard of the applicant’s activities in Australia in which he engaged in training for evangelism.
In my opinion, it cannot be so read. The Tribunal’s reference in its opening words to its earlier findings, must include those in paragraph 99 which I have referred to above. These were positive findings that the applicant had no compulsion to evangelise, and had invented his claim that he wanted to evangelise. In my opinion, they involved taking into account, and not disregarding, all his activities in Australia and the Tribunal’s assessment of them.
The Tribunal then confirmed in paragraph 103 that its negative conclusion in relation to s.36(2)(aa) was based upon its consideration of all of the applicant’s evidence about his Australian activities, when it described its earlier findings as including that “the applicant … neither wants to nor will evangelise in China”.
In my opinion, the reasons given by the Tribunal for its adverse conclusion which addressed s.36(2)(aa) disclosed no failure to take into account relevant claims or evidence, nor any misapprehension of relevant law. I am therefore not persuaded that the submissions in support of Ground 2 have established any jurisdictional error.
Since I am not satisfied that this decision is affected by any jurisdictional error, I must dismiss the application.

I certify that the preceding fifty‑two (52) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 14 December 2012